Ameer Bakhsh etc. vs Muhammad Zubair etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

C.R.No.887 of 2015 Ammer Bakhsh. Vs. Muhammad Zubair, etc. Sr.No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding parties or counsel, where necessary Proceedings 11.02.2021 Malik Muhammad Tariq Rajwana, Advocate for the petitioner.

Mr. Muhammad Ashraf Qureshi, Advocate for respondents.

Through this Civil Revision, the petitioner has called in question order dated 12.11.2013 passed by the learned trial court and judgment dated 16.06.2015 passed by the appellate court, whereby application under 144 C.P.C filed by the respondents No. 1 to 19 has been allowed with direction to recover possession of the property from the petitioner and hand over the same to the said respondents.

2.It is contended by learned counsel for the petitioner that both the learned Courts below have not taken into consideration that the possession of the property was throughout held by the petitioner before filing the suit and not as a consequence of decree passed in his favour, therefore, respondents' application under 144 C.P.C could not be allowed rather they were required to file a regular suit for possession.

3.On the other hand, learned counsel for the respondents has defended the orders by saying that as the decree passed by the trial court was reversed by the higher forums, therefore, application under Section 144 C.P.C was rightly allowed by the courts below.

4.Heard. Record perused.

2 C.R.No.887 of 2015

5.In order to exercise jurisdiction under Section 144 C.P.C, to allow benefit of restitution, it is required to determine whether as a consequence of decree passed in favour of the petitioner he had obtained possession of the suit property and on reversal of the said decree, the possession was liable to be restored on the principle of restitution to previous position or the petitioner was in possession of the property even prior to the filing of suit as claimed by him and not as a consequence of decree passed in his favour, which aspect has not been determined by both the courts below and therefore, the impugned order and judgment having failed to determine the real question in issue are not sustainable and are liable to be set-aside.

6.In view of the above, this Civil Revision is allowed with the result that both the afore-referred/ impugned order and judgment are set-aside and matter is remanded to the learned trial court to decide the application under Section 144 C.P.C, filed by the respondents afresh on its own merits.

(MUZAMIL AKHTAR SHABIR)

Judge *Zeeshan Khan*